By an amended originating motion, the Official Assignee seeks:

(a) that the sale and purchase agreement and the unregistered memorandum of transfer both dated 25 September 1981 made between the bankrupt, Kong Yuok Ung, as vendor/transferor and the respondent, Ngu Ung Yong, as purchaser/transferee in relation to two parcels of land situate at 8th Mile, Oya Road, Sibu and described as Lot 115 and Lot 21 respectively both in Block 14 Seduan Land District be declared void as against the Official Assignee under section 52(1) of the Bankruptcy Act 1967;

(b) that the "caveat Sibu Instrument No. L. 3964/1981 be forthwith removed";

(c) damages to be assessed for the wrongful entry of the caveat aforesaid by the respondent.

The caveat Instrument No. L. 3964/1981, however, was not exhibited or produced in evidence.

The grounds upon which the amended motion is based are stated to be:

(1) that Kong Yuok Ung was adjudged bankrupt on 9 July 1984, that he was and, at all material times, had been the registered proprietor of the said two parcels of land and that pursuant to the adjudication order and by virtue of section 24(4) of the Bankruptcy Act 1967, the said two parcels of land became vested in the Official Assignee;

(2) that the said two parcels of land "were in fact vested in the Official Assignee under Instruments No. L.6122/85 and No. L.6123/85 both registered at the Sibu Land Registry Office on 3 December 1985;

(3) that "the purported dealing against the said parcels of land was not genuine or bona fide for valuable consideration but a voluntary settlement in disguise with the intent on the part of the bankrupt to defraud his creditors and with the collusion of the respondent";

(4) that "it is inequitable for the respondent to assert priority over the claim of the applicant in the aforesaid parcels of land".

In the course of submission by counsel for the Official Assignee at the hearing, nothing was said of grounds (1), (2) and (4). Arguments were centred upon ground (3). Nevertheless, I shall deal with those three grounds briefly at a later stage.

The amended motion is supported by the affidavit of the bankruptcy officer Latip bin Mohammad affirmed on 30 June 1986 and the affidavit of Charles Ling Lee Tiong on 5 June 1986. The respondent filed an affidavit in opposition on 2 October 1986. At the trial, Latip and the respondent were cross-examined on their affidavits and the respondent called three other witnesses.

A receiving order was made against Kong Yuok Ung on 26 September 1983, public examination was held on 28 April 1984 and 13 September 1985 and Kong Yuok Ung was adjudged bankrupt on 9 July 1984.

On 25 September 1981, Kong Yuok Ung entered into the agreement for the sale of the said two parcels of land for $100,000 to the respondent who was his son-in-law. On the same date, a memorandum of transfer of the two parcels for $100,000 was executed by Kong Yuok Ung as the transferor and the respondent as the transferee. As one of the conditions of the lease title to each of the two parcels of land is to the effect that no transfer thereof could be effected without the consent of the Director of Lands and Surveys during the initial period of ten years from the dates of registration of the leases (which were 2 December 1974 in respect of Lot 115 and 4 December 1974 in respect of Lot 21), the memoranda of transfer were not registered with the Lands and Surveys. It is stipulated in clause 3 of the agreement, however, that until the registration of the transfer, Kong Yuok Ung shall hold the said lands in trust for the respondent or his assigns absolutely (see exh. LM 5 annexed to Latip's affidavit affirmed on 30 June 1986).

One of the contentions raised in Latip's affidavit but not argued at the hearing is that the purchase and sale agreement and transfer are illegal in view of the title condition prohibiting dealing of the lands within the initial ten years from the dates of registration of the leases. I do not think